Citation Nr: 9922228
Decision Date: 08/06/99 Archive Date: 08/12/99
DOCKET NO. 94-01 436 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Columbia, South Carolina
THE ISSUE
Entitlement to service connection for sinusitis.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
Richard V. Chamberlain, Counsel
INTRODUCTION
The veteran had active service from September 1980 to August
1984. She also had service in the United States Naval
Reserve from around 1984 to 1993.
This case comes to the Board of Veterans' Appeals (Board)
from a July 1992 RO rating decision that denied service
connection for a low back disorder, sinusitis, and
temporomandibular joint (TMJ) dysfunction. In March 1996,
the Board granted service connection for TMJ dysfunction with
arthritis and remanded the case to the RO for additional
development with regard to the other 2 issues and for
adjudication of the "inextricably intertwined" claim of
service connection for rhinitis. The case was returned to
the Board in 1997. The evidence then of record showed that
the RO had been unsuccessful in attempting to schedule the
veteran for CT (computed tomography) of the paranasal sinuses
as requested by the Board and the case was returned to the
Board without adjudication of the issue of service connection
for rhinitis.
In October 1997, the Board granted service connection for a
low back disorder manifested by pain and remanded the case to
the RO for additional development with regard to the issue of
service connection for sinusitis and for adjudication of the
issue of service connection for rhinitis. The RO was unable
to contact the veteran in order to schedule her for a CT of
the paranasal sinuses and the claim was returned to the Board
in 1999 without adjudication of the issue of service
connection for rhinitis.
Since the issue of service connection for rhinitis has not
been adjudicated by the RO, it is not a matter for appellate
consideration. Nor does the Board find that another remand
of the case to the RO for this action would serve any useful
purpose as the veteran's whereabouts are unknown and she
would be unable to appeal any adverse action taken by the RO
on this claim because notice of the action could not be
delivered to her. The claim for service connection for
rhinitis is still active, and it is referred to the RO for
appropriate action.
FINDINGS OF FACT
1. Sinusitis was present prior to service as indicated by
clinical findings in the service medical records and the
medical reports of her post-service treatment and
evaluations.
2. The preservice sinusitis underwent no increase in
severity during service.
CONCLUSION OF LAW
Sinusitis clearly and unmistakably existed prior to entry
into service and was not aggravated by active service.
38 U.S.C.A. §§ 1111, 1131, 1153, 1137 (West 1991); 38 C.F.R.
§§ 3.303, 3.306 (1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
A. Factual Background
The veteran had active service from September 1980 to August
1984. She also had service with the U.S. Naval Reserve from
around 1984 to 1993.
The service medical records show that the veteran underwent a
medical examination for enlistment in August 1980. On the
report of medical history, she gave a history of sinusitis
and of surgery for correction of a deviated septum in 1979.
Sinusitis was not found on examination at that time.
Service medical records show that the veteran was seen for
nasal problems on various dates. The more salient medical
reports are discussed in the following paragraphs.
A service medical report of the veteran's treatment in March
1981 shows that she was seen for sinus headaches, difficulty
breathing, and nasal congestion. She gave a history of nasal
surgery 2 years ago and of multiple seasonal allergies. The
assessment was allergic rhinitis. She was prescribed
medication. On June 5, 1981, she complained of blurring
vision and headaches for 2 days. X-rays of the sinuses
revealed evidence of opacification of both maxillary sinuses
as well as clouding of the frontal sinus compatible with
paranasal sinusitis. The assessment was sinusitis. On June
16, 1981, the veteran still complained of sinus problems. X-
rays of the sinuses showed some interval improvement in the
overall appearance of the previously described paranasal
sinusitis. The assessments were allergic rhinitis and
chronic sinusitis. In 1981, the veteran underwent
orthognathic surgeries. A report of her treatment in
February 1982 shows that she was seen for complaints of an
upper respiratory infection. The impression was upper
respiratory infection with no evidence of recurrent sinusitis
or otitis.
Service medical records show that the veteran underwent
partial turbinectomy and left nasal antral window while
hospitalized in April 1983. A history of orthognathic
surgery approximately 1 and 1/2 years ago with recurrent
sinusitis since was noted. The assessment was chronic
sinusitis. A report of treatment in September 1983 notes
that she underwent soft tissue septorhinoplasty with closure
of septal perforation. In February 1984, she was seen for
complaints of hoarseness, post nasal drip, sore throat, and
"off and on' cough. The impressions were chronic sinusitis
and chronic hoarseness. In March 1984, she was seen for
blunt trauma to the face. She complained of soreness to the
nose and difficulty breathing. The impressions were no nasal
fracture and chronic rhinitis. Radiograph studies (water's
view) of the sinuses in July 1984 revealed no evidence of
sinusitis.
Service medical records show that the veteran underwent
medical examination for separation in August 1984. A history
of sinusitis was reported on a report of medical history
completed by the veteran. It was noted that she had chronic
allergies with vasomotor allergic rhinitis. Sinusitis was
not found on examination at that time.
Service department medical records show that the veteran was
treated and evaluated for various conditions in the 1980's
and early 1990's after separation from active service in
1984. These reports show that she was seen as a reservist,
dependent of a serviceman, and in the NAVCARE II program.
Reports of her treatment reveal that she has continuous nasal
problems, classified as allergic rhinitis and sinusitis.
In January 1992, the veteran underwent a VA ENT (ears, nose,
throat) examination. She was then on medication for
allergies and gave a history of treatment for sinusitis in
1991. She states that her nasal and sinus symptoms were
worse at times of seasonal change and were slightly worse in
the Spring and Fall. A history of septoplasty in 1979 for
septal deviation and nasal obstruction was noted. It was
noted that she had undergone bilateral partial turbinectomy
with nasoventral window for chronic rhinosinusitis in 1983
and of septorhinoplasty with closure of the septal
perforation in September 1983. A history of TMJ surgery in
1982 and 1988 was noted. Nasal exam with flexible
nasopharyngoscopy showed a normal nasal vestibule. The
external nose had a slight deviation of the dorsum to the
left that was not considered a problem or cosmetically
disfiguring. There was mild left septal deviation that was
not causing any airway obstruction. There was a small 1 to 2
millimeter septal perforation at the anterior inferior aspect
of the septum noted on the right. The floor of the nose was
normal. Inferior and middle turbinates were normal as well
as inferior middle meati. There was no polypoid or purulent
drainage from the middle meatus. With flexible
nasopharyngoscopy the veteran had a slightly diffuse increase
in lymphoid tissue in general with no focal pathology noted.
The adenoids were somewhat enlarged as well as the lymphoid
tissue in the base of the tongue and vallecular area. The
symptoms were consistent with likely allergic history. There
was no sinus tenderness to percussion at this examination.
There was no facial swelling. The diagnoses were probable
allergic rhinitis, and rule out chronic sinusitis. The
examiner noted that the veteran's history of frequent severe
sinus infections warranted further ENT evaluation and
recommended a limited coronal noncontrast paranasal sinus CT
to evaluated all the paranasal sinuses and to rule out any
mechanical obstruction in the ostium meatal complex unit that
may contribute to recurrent sinus infections.
The veteran testified at a hearing in October 1992. Her
testimony was to the effect that she had sinus attacks prior
to entry into service and that she underwent surgery for a
deviated nasal septum prior to service. She testified that
her sinus attacks worsened shortly after entry into service
and that she underwent surgeries in service to alleviate her
sinus problems.
A report from the medical director of NAVCARE II dated in May
1993, notes that veteran's medical conditions included
chronic allergic rhinitis.
In March 1996, the Board remanded the case to the RO in order
to schedule the veteran for a CT of the paranasal sinuses
and, after a report of this study had been added to the
claims folders, a review of the record by the examiner who
conducted the January 1992 VA ENT examination for expression
of an opinion on the etiology of the veteran's chronic nose
and throat disorders, including opinions on whether it was at
least as likely as not that the veteran's preservice sinus
condition worsened in active service or is related to
mandibular surgery in service.
VA attempts to schedule the veteran studies in 1996 and 1997
were unsuccessful as notices sent to her at her latest
address of record were returned by the postal service as
undeliverable, and the case was returned to the Board. In
October 1997, the Board again remanded the case to the RO
with instructions to make further attempts to ascertain her
whereabouts and in order to schedule her for a CT of the
paranasal sinuses and to have this information reviewed by
the physician who conducted the January 1992 VA ENT
examination.
A review of the evidence in the claims folders shows that
various attempts were made by the RO to ascertain the
veteran's whereabouts in 1997, 1998, and 1999. Various
correspondence was sent to the veteran and returned as
undeliverable by the postal service, her father and
representative were contacted, and telephone calls made to
her last residence. All attempts to ascertain her
whereabouts were unsuccessful and the claims folders were
returned to the Board.
B. Legal Analysis
The veteran's claim is well grounded, meaning it is
plausible. 38 U.S.C.A. § 5107(a) (West 1991). No further
assistance to her is required to comply with VA's duty to
assist her in the development of facts pertinent to her
claim, for the reasons stated herein.
In order to establish service connection for a disability,
the evidence must demonstrate the presence of it and that it
resulted from disease or injury incurred in or aggravated by
service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303.
A veteran who served during a period of war or during
peacetime service after December 31, 1946, is presumed in
sound condition except for defect noted when examined and
accepted for service. Clear and unmistakable evidence that
the disability manifested in service existed before service
will rebut the presumption. 38 U.S.C.A. §§ 1111, 1137.
A preexisting injury or disease will be considered to have
been aggravated by active service, where there is an increase
in disability during such service, unless there is a specific
finding that the increase in disability is due to the natural
progress of the disease. Clear and unmistakable evidence
(obvious or manifest) is required to rebut the presumption of
aggravation where the preservice disability underwent an
increase in severity during service. This includes medical
facts and principles which may be considered to determine
whether the increase is due to the natural progress of the
condition. Aggravation may not be conceded where the
disability underwent no increase in severity during service
on the basis of all the evidence of record pertaining to the
manifestations of the disability prior to, during and
subsequent to service. The usual effects of medical and
surgical treatment in service, having the effect of
ameliorating disease or other conditions incurred before
enlistment, including postoperative scars, absent or poorly
functioning parts or organs, will not be considered service
connected unless the disease or injury is otherwise
aggravated by service. 38 U.S.C.A. § 1153 (West 1991);
38 C.F.R. § 3.306(a),(b) (1998). A veteran seeking service
connection by aggravation is not entitled to presumption of
aggravation in service, where there was temporary worsening
of symptoms, but the condition itself did not worsen. Hunt
v. Derwinski, 1 Vet. App. 292, 296 (1991).
When entitlement or continued entitlement to a benefit cannot
be established or confirmed without a current VA examination
or reexamination and a claimant, without good cause, fails to
report for such an examination, or reexamination, action
shall be taken in accordance with paragraph (b). 38 C.F.R.
§ 3.655(a) (1998).
When a claimant fails to report for an examination scheduled
in conjunction with an original compensation claim, the claim
shall be rated based on the evidence of record. When the
examination was scheduled in conjunction with any other
original claim, a reopened claim for a benefit which was
previously disallowed or a claim for increase, the claim
shall be denied. 38 C.F.R. § 3.655(b) (1998).
The veteran's testimony indicates that she had sinus attacks
prior to service and this evidence is supported by clinical
findings in the service medical records and the medical
reports of her post-service treatment and evaluations. Under
the circumstances, the Board finds that sinusitis clearly and
unmistakably existed prior to her entry into service.
The veteran's testimony indicates that her sinus attacks
worsened shortly after entry into service and the service
medical records show continuous treatment for nose and throat
problems classified as sinusitis and rhinitis. The service
medical records also show that the veteran underwent
surgeries for problems with her jaw and nasal problems, and
the report of her medical examination for separation from
service in August 1984 notes a history of allergic rhinitis.
Sinusitis was not found at the August 1984 separation
examination.
The post-service medical records show that the veteran has
received continuous treatment for sinus and nasal problems,
classified as sinusitis and allergic rhinitis. In January
1992, she underwent a VA ENT examination to determine the
nature and extent of any sinusitis, and the examiner
concluded that she had probable allergic rhinitis and
recommended a CT of her paranasal sinuses to determine the
nature and extent of her sinus problems. Attempts by VA to
schedule the veteran for a CT of her paranasal sinuses were
unsuccessful as notices sent to her were returned by the
postal service and attempts to determine her whereabouts
failed. Based on the evidence currently of record, the Board
is unable to determine the nature of the veteran's current
sinus problems, whether or not her sinusitis increased in
severity in service or whether or not her sinus problems in
service were the usual effects of surgery and treatment in
service. Since she had had sinusitis and nasal surgery prior
to service, and was free of sinusitis at separation, the
Board finds that there was no increase in disability during
service.
A review of the evidence shows that correspondence sent to
the veteran at her last address of record has been returned
by the postal service as undeliverable, and VA and the
veteran's representative have been unsuccessful in obtaining
another address for the veteran in order to notify her of a
schedule CT of her sinuses. She has an obligation to
cooperate, when required, in the development of evidence
pertaining to her claim. The duty to assist is not always a
one-way street, nor is it a blind alley. Wood v. Derwinski,
1 Vet. App. 190, 193 (1991); Olson v. Principi, 3 Vet. App.
480, 483 (1992). "In the normal course of events, it is the
burden of the veteran to keep VA apprised of h[er]
whereabouts. If [s]he does not do so, there is no burden on
the part of VA to turn up heaven and earth to find h[er]."
Hyson v. Brown, 5 Vet. App. 262, 265 (1993). VA's duty to
assist her in developing her claim has been met in this case.
She has not shown good cause for her failure to report for
scheduled CT of the paranasal sinuses. The fact that she did
not receive actual notice of the scheduled medical study is
not good cause, because she has violated her duty to keep VA
apprised of her whereabouts. She is always free to submit an
application to reopen the claim for service connection for
sinusitis.
After consideration of all the evidence in this case,
including the veteran's testimony, the Board finds that the
preponderance of it is against the claim for service
connection for sinusitis, and it is denied. Since the
preponderance of the evidence is against the claim, the
benefit of the doubt doctrine is not for application.
38 U.S.C.A. § 5107(b) (West 1991); Gilbert v. Derwinski, 1
Vet. App. 49 (1990).
ORDER
Service connection for sinusitis is denied.
J. E. DAY
Member, Board of Veterans' Appeals